Limits of state hate crime law raised in Nazi sympathizer’s Supreme Court appeal

The sentence of a convicted Nazi sympathizer could soon be overturned if the state Supreme Court determines that a hate crime statute was incorrectly applied in his case, as two justices have suggested it may have been.

The justices expressed skepticism Thursday that Paul Costella was rightly sentenced in 2012 to 12 months in jail and 2½ to five years in prison, the latter of which was suspended on good behavior, for making threatening, anti-Semitic statements at the Tilton Walmart two years earlier. A jury found that Costella had threatened two employees in the store’s automotive department after one of them took offense to a picture in his car displaying him and his daughter standing before a large swastika, their arms raised in a “Heil Hitler” salute.

According to court records, Costella responded, “(A)re you a Jew? Are you a gypsy Jew?” The woman refused to answer but later told Costella that her uncle had worked for the French resistance during World War II and had been caught and burned alive by Nazi paramilitaries.

“I hope that Jew bast--- suffered,” Costella replied, according to the records.

The woman and other Walmart employees testified that Costella proceeded to threaten her and a manager, telling them he had a “Jew-killing gun” in his car that he planned to use “to kill the Jew b---h behind the counter.” When a manager stepped in on the employee’s behalf, Costella said he was going to kill him, too, according to testimony.

Costella and two friends present during the incident denied the employees’ claims, but jurors were convinced, convicting him on all three misdemeanor charges – one for criminal mischief and two for criminal threatening. The state moved for an enhanced sentence, citing a state hate crime statute that targets offenses driven by “hostility towards the victim’s religion, race, creed, sexual orientation . . . national origin or sex.”

On appeal, Costella’s public defender, Stephanie Hausman, contends that the statute was misapplied because her client had no way of knowing whether the employee or the manager were Jewish – neither admitted explicitly one way or the other – and hence his crimes could not have been motivated by hate for their religion.

“All that was required here was a question of (the employee): Are you Jewish? Yes or no,” Hausman said. “The question was never (answered).”

(The employee is Jewish; the manager is not.)

The state has countered that the statute applies regardless of the employees’ identities. If Costella believed they were Jewish, Assistant Attorney General Lisa Wolford argued before the court, then his crimes fall within its intended purview.

But Justices Robert Lynn and Carol Ann Conboy – two of the court’s five members – seemed dubious of Wolford’s point, noting that perception is an express factor in the statute.

“Let’s assume that’s what (legislators) really intended to do,” Lynn said. “But they didn’t do it. If the language isn’t ambiguous, can we say, ‘Well, you know, close enough. We know they sort of meant to do this, they didn’t do this, but we’re going to say someone goes to jail.’ As opposed to saying, ‘If this is what you intended, go back and do it right.’ ”

“If we accept your argument we’re going to have a crime for outrageous bigotry,” Conboy said. “Which is – that’s the case here, no question about it. But the Legislature didn’t say we’re criminalizing outrageous bigotry. It said precisely, ‘hostility toward the victim’s religion.’ I mean, do we go after the Archie Bunkers if they spew venom that is not directed at a particular victim’s religion?”

Lynn cycled through a few hypothetical scenarios.

“Suppose I’m a Catholic lawyer and one of the things I do is represent Jewish people charged with a crime . . . for whatever – but you know I’m not Jewish,” he told Wolford. “If you attack me because I’m sympathetic to Jewish causes, or something, is that a violation of the statute?”

“Yes,” she replied. “Under our construction it is a violation.”

Addressing Hausman, he said, “Suppose the circumstances were that the defendant believed the victim was Jewish and directed an anti-Semitic remark at the victim believing that the victim was Jewish and doing it because of that belief, but it turned out the victim was not Jewish, would there be a violation?”

“No,” she said. “The statute requires that the defendant be substantially motivated by the victim’s religion.”

“I might mug you if I know or believe you have a Rolex watch,” Hausman noted. “But if the statute requires that I be motivated by your possessions and you do not actually possess a Rolex watch,” then the statute wouldn’t apply.

(Jeremy Blackman can be reached at 369-3319, jblackman@cmonitor.com or on Twitter @JBlackmanCM.)